LIAKAT ALI Vs. BINOY SAHA ROY
HIGH COURT OF GAUHATI
Binoy Saha Roy
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Prasanta Kumar Deka, J. -
(1.) Heard Mr. N.Dhar, learned counsel for the appellant. Also heard Mr. S.P.Roy, learned counsel for respondent.
(2.) The present appellant is the plaintiff who filed Title Suit No. 26/1993 in the Court of Civil Judge, Senior Division, Darrang at Mangaldoi for declaration and confirmation of the plaintiff appellant's right, title over the suit land and also for ejectment of the defendant respondent. Sadhan Ch Paul and Dinesh Ch. Paul were impleaded as proforma defendant Nos. 2 and 3 respectively in the suit. However they are not impleaded in this appeal. As per the plaint, the suit land measuring 1 bigha 2 kathas 10 lechas covered by dag No. 334 of periodic patta No. 213 of village Khaterchar under Pachim Sialmari Mauza and described in the schedule of the plaint originally belonged to Dos Mahmud and Nurruddin Ahmed. The proforma defendant Nos 2 and 3 alongwith their brother Fakir Chand Paul purchased the suit land from the said Dos Mahmud and Nuruddin Ahmed by way of a registered sale deed bearing No. 283 dated 28.1.1954(Ext.1). After the sale transaction possession was delivered to the said proforma defendants and their brother. Fakir Chand Paul died issueless. The said proforma defendants possessed the suit land by growing seasonal crops and planted different kind of trees and their names were also mutated. The said suit land was sold to plaintiff appellant by way of registered sale deed No. 1350 dated 12.6.1987(Ext.2) and delivered possession by the proforma defendant Nos. 2 and 3. A proceeding under Section 145 Cr.P.C. was initiated by the defendant respondent which was registered as Misc. Case No. 182/1987 and vide order dated 11.5.1993 possession was declared over the suit land in favour of the defendant respondent who constructed two C.I.sheet roof 'Chali' (shed) on the Southern part of the suit land measuring 25 feet X 10 feet and also raised iron post on the South Eastern corner and collected building materials to construct pucca house. A small 'Ghoomti' house measuring 8 feet x 6 feet on the Southern part of the land was also raised. The claim of the plaintiff is that the defendant respondent has no right, title and interest over the suit land and accordingly filed the suit with the reliefs hereinabove mentioned.
(3.) The defendant respondent entered appearance, filed written statement and raised the plea that the suit is not maintainable for non-joinder of necessary party and also raised the plea that the suit is barred by law of limitation. Denying the pleadings made in the plaint, the defendant respondent pleaded that the suit land belonged to Dos Mahmud son of Haji Osman. On 16.5.1951 Amena Khatun wife of Dos Mahmud sold 2 bighas 10 kathas 2 lechas of land covered by Dag No. 94 of periodic patta No. 61 of village Kheterchar to Malchand Malpani son of Kishan Malpani of Kharupetia by way of registered sale deed bearing No. 67 dated 16.5.1951(Ext. Cha).In1964 late Hitesh Saha the father of the defendant respondent orally purchased the said land measuring 2 bighas 2 kathas 10 lechas from Malchand Malpani and Ram Kr. Malpani and possessed the same which was later on purchased by the defendant respondent on 28.2.1987 by way of registered sale deed No. 679 dated 28.2.1987 (Ext.Gha). The father of the defendant respondent died in the year 1980 and thereafter the possession was continued by the defendant respondent cultivating muster seeds and other agricultural produce. Admitting the sale of land measuring 1 bigha 2 kathas 10 lechas covered by periodic patta No. 61 dag No. 94 to the proforma defendant Nos. 2 and 3 and their deceased brother by the registered sale deed dated 27.1.1954, it is the plea raised by the defendant respondent that out of the said land, the said three brothers sold 4 kathas 14 lechas of land to various persons leaving aside 2 kathas 16 lechas under their possession. The defendant respondent purchased in total 2 bighas 3 kathas 10 lechas of land including suit land measuring 1 bigha 2 kathas 10 lechas and possessing the land continuously. The suit land has all along been under his possession till the date of filing the suit for about 29 years by constructing 'Ghoomti ghar' and the same was under occupation of Shyamlal Saha as monthly tenant. Another 'Ghoomti ghar' situated in the eastern side was constructed and occupied by Pasu Gopal Saha as monthly tenant under defendant respondent. The defendant respondent further pleaded that on 10.4.1987 certificate was issued by the plaintiff appellant who is the Mauzadar admitting that the entire 2 bighas 3 kathas 10 lechas including 1 bigha 2 kaths 10 lechas of land was owned and possessed by the defendant respondent. The defendant respondent has all along occupied the land since long time without interruption and denied the right, title and interest of the plaintiff appellant and sought for dismissal of the suit.;
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